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Richard W. Nolan v. Arkema

August 15, 2011


The opinion of the court was delivered by: Eduardo C. Robreno, J.



On November 17, 2009, Plaintiff Richard W. Nolan ("Nolan" or "Plaintiff") initiated this action against Defendant Arkema, Inc. ("Arkema" or "Defendant"), alleging discrimination based on his disability, in violation of the Americans with Disabilities Act of 1990, as amended 42 U.S.C. § 12101 et seq. ("ADA"), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA"). Plaintiff seeks back pay, front pay, loss of benefits, compensatory and punitive damages and costs. (See Pl.'s Compl. ¶¶ 44-45.) Defendants bring a Motion for Summary Judgment as to all claims in Plaintiff's Complaint. For the reasons set forth below, the Court will deny Defendant's Motion for Summary Judgment.


Nolan worked for Arkema, or its predecessor companies, for 27 years from 1980 to 2007 when he was terminated. (Nolan Dep. 51.) Throughout his career at Arkema, Nolan had the following jobs: machine operator, extruder operator, supervisor, assistant day foreman, shift foreman, and shift supervisor. (Id. at 86-87.) Nolan was a supervisor from 1988 to 2007. In 2006/2007, Arkema's Bristol plant had approximately 85-90 employees. (Thomas Dep. 29.)

When Nolan began his medical leave of absence, he was working at Arkema's Bristol plant in Bucks County as a shift supervisor. (Nolan Dep. 88.) Nolan was first diagnosed with the mental health condition of intermittent explosive disorder (IED) in October, 2006. (Id. at 85, 124-25.) He admitted himself to Warminster Hospital and was an in-patient care for three days. 126-27. In January, 2007, Nolan had surgery for prostate surgery. (Id. at 131.) He then had an impinged nerve in his low back. (Id.)

During his absence from work, Nolan stayed in communication with his supervisor, Michael Dopson ("Dopson"), by phone, email, and in person at the worksite. (Id. at 133; Plf.'s Resp., Ex. 4-5 (email exchanges between Nolan to Dopson).) In May, 2007, Nolan began coming into the plant on a weekly basis to communicate with Dopson and Gloria McGee ("McGee"), Secretary to the Human Resources Manager and Plant Manager. (Nolan Dep. 143.)

On May 23, 2007, Tony Thomas ("Thomas"), the Regional Human Resources Manager, sent Nolan a letter informing him that he had exhausted his short term disability benefits and all of his allotted Family Medical Leave Act time. Although it is Arkema's typical policy to terminate an employee once the employee has exhausted 26 weeks of short term disability and is transitioning to long term disability, that was not done with Nolan. (Id. at 77.) Instead, while Nolan was out on disability, Arkema filled his position with a temporary foremen, overtime, and D. Tyrell ("Tyrell"). (Id. at 72, 198.) Tyrell did not officially get Nolan's job until after Arkema terminated Nolan. (Id. at 198.)

On March 23, 2007, Dopson sent an email to McGee, copying Plant Manager Scott Tatro ("Tatro") and Thomas, stating that Nolan had sent him an email and that Nolan had some additional medical issues that could delay his return to work for approximately six weeks. (Plf.'s Resp., Ex. 9 (email)). Dopson also stated in the email that he spoke with Joe Saxton ("Saxton") regarding Tyrell's availability to help cover Nolan's shift and that he also spoke with Brian Kirschner ("Kirschner") about rotating the shift supervisors' assignments to distribute overtime work more evenly. (Id.) Beginning in mid-April of 2007, Tyrell began working in Nolan's shift supervisor role full time on a temporary basis. (Def. Mot. Summ. J., Undisputed Fact No. 50.)*fn2

On August 2, 2007, Nolan came into the plant and met with Dopson about his return to work. (Nolan Dep. 161-62.) Dopson took Nolan through the plant, showed him some of the changes in the plant including a new oven cleaner and changes to the control room, and talked with Nolan about what kind of training he would need to return to work the following week. (Id. at 162-63, 233.) Nolan was at the plant for over an hour and he met and talked with his crew members. (Id. at 162-63.) Dopson never gave Nolan any indication on that day that he did not have a job to return to. (Id. at 234.)

On August 6, 2007, Nolan was examined by Dr. Michael Goldstein at Healthworks located at Lower Bucks Hospital. (Id. at 166.) Healthworks is where Nolan had to go to see the company's doctor in order to obtain a clearance to return to work. (Id. at 159.) On August 6, 2007, Nolan received Dr. Goldstein's medical report which stated that Nolan had two restrictions: (1) no lifting more than 50 pounds and (2) no standing/walking one hour without an opportunity to sit for 20-30 minutes. (Plf.'s Resp., Ex. 15 (medical report).)

McGee and Thomas received a copy of the August 6 medical report and reviewed it. (McGee Dep. 66-67; Thomas Dep. 124, 127.) Later that day, McGee called Nolan and told him that he was not allowed to return to work. (Nolan Dep. 179.) When Nolan spoke with Thomas, Thomas told him that with the restrictions contained on his return to work form they could not accommodate him. (Id. at 180.) Nolan said he did not feel that the restrictions applied to a shift supervisor's job, but Thomas disagreed with him. Nolan told Thomas that he would return to his doctor and Healthworks to get things straightened out. (Id. at 180.)

Thomas said during his deposition that he consulted Dopson regarding the medical report, but Dopson denied this during his deposition. (Thomas Dep. 133; Dopson Dep. 75.) However, Dopson recalls discussing with Thomas that Arekema would not bring anyone back to work if they had restrictions that prevented them from performing 100% of their tasks and duties.

(Dopson Dep. 102-03.)

On August 6, 2007, Thomas sent Nolan a letter stating that Arkema could not accommodate his return to work at that time due to the restrictions contained in the medical report from Healthworks. (Plf.'s Resp., Ex. 17 (the letter).) The letter did not state that Nolan's employment was terminated. On August 7, 2007, Nolan received the letter and called his doctor that day. (Nolan Dep. 181-82.) That same day, his doctor gave him a form that did not have any restrictions on his work. Nolan called Healthworks and scheduled an appointment for August 8. (Id. at 183.) He then called McGee and told him that he had scheduled an appointment with Healthworks. (Id. at 183.) Shortly thereafter, McGee called him and told him to not go to Healthworks on August 8 and that he should instead go on August

10. (Id. at 185.) Nolan did not know why McGee had told him to go to Healthworks on the 10th instead of the 8th. (Id. at 186.)

On August 9, 2007, Nolan received a letter from Thomas dated August 8, 2007. (Id. at 187-88.) The letter stated that since he and Nolan had spoken on August 6, Thomas had come to better understand the day to day operations of Arkema's Bristol plant. (Plf.'s Resp., Ex. 18 (the letter)). Thomas claimed that Arkema had filled Nolan's position while he was out of work, and explained that Nolan did not have a job to return to. (Id.) Thomas encouraged Nolan to submit a job application and that if he becomes aware of any opening at Arkema that he believes he believes he is qualified for. (Id.) Nolan still went to Healthworks on August 10 and he obtained a medical report with no restrictions. (Plf.'s Resp., Ex. 20 (the medical report).) Thomas saw this form on or around August 10, 2007, but did not contact anyone to find out why the two medical forms were different. (Thomas Dep. 128-29.)

On August 17, 2007, Nolan applied for an on-line job posting for production supervisor at Arkema's Bristol plant. (Nolan Dep. 208.) In response, on September 6, 2007, Thomas sent a letter to Nolan stating that the position had been filled some time ago. However, Thomas said he would keep Nolan's resume on file for two years and if an opening arose for which he was qualified, his resume would be considered. (Plf.'s Resp., Ex. 24 (the letter).) In October, 2007, there was an opening for a shift supervisor position at the Bristol plant that Nolan qualified for. (Dopson Dep. 115-17.) However, Dopson did not contact Nolan about the opening because he was aware of Thomas' promise to Nolan and expected that Thomas would contact Nolan. (Id. at 114-17.) Thomas did not contact Nolan about this position. (Thomas Dep. 113.)

When Thomas later completed an employer questionnaire as part of Nolan's application for unemployment compensation benefits, Thomas certified to the Pennsylvania Department of Labor & Industry that Nolan voluntarily quit, that Nolan's separation from Arkema was temporary, and that Nolan failed to return to work from a leave of absence. (Plf.'s Resp., Ex. 19 (employer questionnaire).)

On November 17, 2009, Nolan initiated his employment discrimination action against Arkema. On January 19, 2010, Defendant submitted its answer, denying Plaintiff's claims and asserting various affirmative defenses. On November 22, 2010, Defendant filed a Motion for Summary Judgment. Plaintiff responded on December 13, 2010, and Defendant ...

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